United States v. Peter John Capriola and Ronald Freeze

537 F.2d 319

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 1976
• Docket: 75-1099, 75-1158
• Status: Published

Opinions

OPINION

Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge.*

PER CURIAM:

Appellants Capriola and Freeze were convicted under 21 U.S.C. §§ 952 & 963, for conspiracy to smuggle marijuana from Mexico into this country. Capriola was also convicted on a second count for attempting to import marijuana from Mexico.

Here, the appellants present only three contentions worthy of comment. They first argue that delay by the Government in seeking and obtaining indictments against them infringed due process rights guaranteed to them by the Fifth Amendment. The record does not disclose that the delay resulted in any such prejudice to the appellants as to require reversal. See United States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

The second argument made by appellants is that evidence of a wholly separate conspiracy was admitted against them to their prejudice. Based upon our conclusion that there was, essentially, only one continuing conspiracy, the admission of the challenged testimony did not constitute reversible error.

Finally, appellants argue that more severe sentences were imposed upon them because they exercised their right to stand trial. If this is true, the constitutional rights of the appellants have been infringed. See United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973). In support of the contention, the appellants emphasize the disparity in the sentences imposed upon them, as compared to those received by their co-conspirators, who pleaded guilty. From the record before us, we cannot fairly evaluate the contention. The record does reveal that a number of individuals were originally supposed to have been involved in the criminal activity. The charges against two of them, Buegal and Wachter, were dismissed. Another, Bletch-er, received a dismissal of one charge at the Government’s request, and, upon a plea of nolo contendere to another charge, was sentenced to five months of suspended probation. A fourth, Kaplan, was permitted to plead guilty to the possession of marijuana and was awarded straight probation. He was a witness for the prosecution. A fifth, Caruso, pleaded guilty to one count and was ordered confined for a period of two years, the sentence to be served concurrently with a sentence of confinement which he was then serving. A sixth, Mazzie, pleaded guilty to one count, received a sentence of three years probation, with other counts dismissed. Mazzie was named in more counts than any other of the accused, and he, like Kaplan, testified for the prosecution. Finally, one Duley, who may have been the principal organizer of the whole illicit enterprise, pleaded guilty and was sentenced to a two-year period of confinement, this sentence, as in the case of Caruso, to be served concurrently with another sentence already being served by Duley.¹

In contrast, the appellant Capriola, a lawyer, who pleaded not guilty, was sentenced after trial to a term of six years of imprisonment, to be followed by a three-year period of parole. And the appellant, Freeze, after trial and conviction, was sentenced to a three-year term of confinement, with a mandatory three-year parole period.

There may be good and sufficient reasons for such substantial disparity in the treatment of those who did not stand trial and the appellants, who did. But, if there are such reasons, the record here is not adequately explicit to make those reasons readily discernible. See United States v. Wiley, 278 F.2d 500 (7th Cir. 1960).

When there is substantial disparity in sentences imposed upon different individuals for engaging in the same criminal activity, the preservation of the appearance of judicial integrity and impartiality requires that the sentencing judge record an explanation. A formal statement of reasons is not necessary. The courts may easily make their explanations orally during the sentencing procedures, and these will appear in the record.

We therefore conclude that there must be a remand to enable the District Court to reconsider the sentences of both appellants. If the court remains convinced that the sentences should not be substantially ameliorated, then it should state its reasons for imposing the sentences. If it concludes that it did penalize either of the defendants because he exercised his right to a trial, it should vacate the sentence and resentence that defendant, again stating its reasons for imposing the sentence.

The judgments of conviction are affirmed, but the cause is remanded for further proceedings in line with the requirements herein specified.

Remanded.

1 . In their briefs, the appellants insinuate that Duley was extraordinarily vicious, writing, “It might be mentioned in this regard that defendant Duley attempted to solicit the commission of murder. That is, the killing of defendant, Freeze. .